On Point: 8. Counsel, 6th Am.

Gordon Sussman v. Jenkins, 7th Cir No. 09-3940, 4/1/11

7th circuit decision, granting habeas relief in State v. Sussman, 2007AP687-CR; in chambers opinion on stay

Habeas – Confrontation – Rape Shield and Prior False Allegation

The state court unreasonably restricted Sussman’s cross-examination of his chief accuser, and thus violated his right to confrontation, by precluding him from inquiring into the complainant’s prior false allegations of sexual misconduct.

State v. Christopher Donnell Jones, 2010AP164-CR, District 1, 3/29/11

court of appeals decision (not recommended for publication); for Jones: Melinda A. Swartz, SPD, Milwaukee Appellate; case activity

Counsel’s failure to impeach police officers with their reports, which omitted certain details they testified to, wasn’t prejudicial. Therefore, the postconviction court properly denied relief without holding a Machner hearing.

¶18 We disagree.  The omission of these reports did not prejudice Jones’s case. 

Winnebago County DHHS v. Thomas C. W., 2010AP847, District 2, 3/16/11

court of appeals decision (1-judge, not for publication); for Thomas C.W.: Theresa J. Schmieder; case activity

Though trial counsel was ineffective with respect to a single discrete oversight – failure to lodge a meritorious motion for judgment notwithstanding verdict as to one of the 3 grounds for termination – the court discerns no basis to doubt either of the remaining 2 grounds,

State v. Anthony M. Smith, 2009AP2867-CR, District 1/4, 3/3/11

court of appeals decision (not recommended for publication); for Smith: Rodney Cubbie, Syovata K. Edari; case activity

Trial court’s limitations on cross-examination with respect to State witness’s “prior mental condition” or use of medications (prescribed for his Bipolar Disorder and Attention Deficit Disorder) upheld as proper exercise of discretion. The witness was taking his medication at the time of the alleged offense,

State v. Winston B. Eison, 2011 WI App 52; for Eison: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity

Preservation of Issue – Motion in Limine

Eison objected to introduction of evidence of his arrest on an unrelated offense via motion in limine, which the trial court granted. At trial, however, the court allowed the State to introduce this evidence. Eison didn’t need to lodge additional objection to preserve the issue for review.

State v. Derek J. Copeland, 2011 WI App 28; for Copeland: David Leeper; case activity

Trial court has discretion under § 906.15(3) to order an attorney not to discuss with a sequestered witness who hasn’t yet testified the testimony of other witnesses; this authority extends to barring counsel from providing the sequestered witness with a transcript of prior-witness testimony. The trial court in this instance misperceived a lack of such authority,

State v. Sidney Clark, 2010AP790, District 1, 2/23/11

court of appeals decision (not recommended for publication); for Clark: John A. Pray; case activity

Clark can’t show prejudice from the deficient performance he alleges, therefore he isn’t entitled to a Machner hearing on ineffective assistance of counsel.

¶21      A postconviction hearing is necessary to sustain a claim of ineffective assistance of counsel.  See State v.

State v. Richard L. Daniels, 2010AP1715-CR, District 3, 2/23/11

court of appeals decision (1-judge, not for publication); for Daniels: John M. Carroll; case activity

Ineffective Assistance of Counsel – Voluntary Intoxication

Voluntary intoxication requires that the defendant establish utter lack of capability to form the requisite intent; because Daniels’ version couldn’t make this showing, counsel’s failure to pursue the defense wasn’t deficient performance.

¶12      It was reasonable for Daniels’ trial counsel to view Daniels’ version of events as inconsistent with a voluntary intoxication defense,

district court decision, granting habeas relief on review of unpublished Wis COA opinion (2000AP-2460-CR); on remand from Toliver v. McCaughtry, 539 F.3d 766 (7th Cir.2008) 

for Toliver: Brian P. Mullins; Toliver BiC; Wis. Resp.; Reply

Habeas – Ineffective Assistance – Deficient Performance

Counsel performed deficiently in failing to call two potential witnesses who would have supported Toliver’s theory of defense that,

Shirley Anderson v. Northwood School District, 2011 WI App 31; case activity

¶7 n. 3:

Northwood cites a circuit court decision from another case as persuasive authority, correctly noting that such a citation does not violate WIS. STAT. RULE 809.23(3), which prohibits citing unpublished appellate cases decided before July 1, 2009.  However, Northwood then emphasizes we affirmed the circuit court, provides citation to the 2005 unpublished appellate court decision,